Constitution front and center with the new Congress
Barack Obama’s second term has barely begun, the new Congress is still in its earliest days, and it is already clear that the two-centuries-old United States Constitution will be front and center in the political battles of the coming months.
Just 10 years ago, the federal debt limit was capped at just over $6.4 trillion; by the end of last year, it was just under $16.4 trillion, and government spending had almost reached the limit, triggering a major political battle that ended when the Congress agreed to a temporary increase due to expire in May.
Although the Congress began setting statutory limits on borrowing for certain expenditures as long ago as 1917, during World War I, and on overall debt limits in 1939, debt ceiling increases have generally been approved routinely, with only sporadic and futile attempts to stop the process. Lately, however, the issue has gained new traction (meaning, more serious attempts to prevent the generally routine increases), and therein lies the constitutional dilemma.
The Constitution places authority over federal spending in the legislative branch as one of the principal means by which the people, through their representatives, maintain control over the scope of the federal government.
At the same time, Section 4 of the 14th Amendment states that “The validity of the public debt of the United States, authorized by law . . . shall not be questioned.”
What exactly does that mean? The debt ceiling increases are Congress’ means of authorizing the executive branch to borrow money–from citizens, private entities, even foreign governments.
But because the validity of the debt is not to be questioned, has the Congress authorized the necessary borrowing by having approved the spending for which the money was borrowed?
If Congress and the president fail to reach an agreement (perhaps more spending cuts in exchange for the authorization to borrow more), will the president attempt to devise his own, possibly extraconstitutional means, to get around the problem?
Will the United States be required to default on its obligations despite the constitutional admonition that those debts be beyond question?
The constitutional conundrum extends to defense policy, too.
While the president is commander in chief of the armed forces, there are serious questions about his authority to keep Congress in the dark about the secretive means often employed in carrying out military activities, such as the recent use of drone strikes in countries with which the United States is not at war.
There are also constitutional difficulties in the decision by the executive to order the killing of American citizens who are suspected (by unspecified officials), but not charged with, the support of enemy forces.
Following repeated cases of indefinite detention and waterboarding of prisoners, there is increasing unrest in Congress about presidential actions in the efforts to combat and disrupt terrorist activities.
And then there’s the recurring question of potential federal interference with citizen rights to privacy–and just how much privacy the Constitution guarantees.
Critics of the abortion-limiting Roe v. Wade decision, including Supreme Court nominee Robert Bork, argued that there is no constitutional right to privacy, but the Ninth Amendment states that the actual enumeration of rights in the Constitution does not suggest that citizens do not retain their other rights.
If that includes a right to privacy, how much may the government authorize private companies to give information about a citizen’s activities to officials of government agencies?
Again, a question that is likely to be raised in the coming months as the Congress wrestles with the persistent tension between constitutionally guaranteed liberties and the government’s need to ensure national security.
In every session of Congress, one thing is clear: major battles over the direction of government inevitably call into play the language, and interpretations, of the Constitution. This year will be no different.
Mickey Edwards is the National Constitution Center-Penn Law visiting scholar for 2013. Edwards, a former congressman, is an author, lecturer, and vice president of the Aspen Institute. His most-recent book is The Parties Versus The People: How To Turn Republicans And Democrats Into Americans, published by Yale University Press.
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